A Belgian tourist is injured in a hotel pool in Valencia when another guest, who also lives in Belgium, jumps in on top of her. A Dutch family's holiday villa in Portugal is flooded by a neighbour's burst pipe. A German tourist slips on a hotel staircase in Crete. Before anyone can say how much compensation is due, someone has to answer an earlier question: which country's law applies? Inside the EU, the answer for damage claims outside contracts comes from one instrument, the Rome II Regulation.
This guide is written for people injured or harmed in an EU Member State other than their own, for the drivers, businesses and insurers on the other side, and for their advisers. It follows the text of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), as published in the Official Journal. Rome II answers one question only, which law applies; which court may hear the claim is a separate question governed by other rules, and the amount of damages depends on the national law that Rome II points to.
What Rome II covers and what it does not (Articles 1 to 3)
Rome II applies, in situations involving a conflict of laws, to non-contractual obligations in civil and commercial matters (Article 1(1)). In everyday terms these are claims that do not arise from a contract between the parties: a road accident, a fall in a shop or hotel, damage caused by a defective product, a neighbour's flood, an act of unfair competition. The Regulation does not apply, in particular, to revenue, customs or administrative matters, or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).
Article 1(2) excludes several fields entirely: non-contractual obligations arising out of family relationships and relationships with comparable effects, including maintenance; out of matrimonial property regimes and comparable property regimes, and out of wills and succession; out of bills of exchange, cheques, promissory notes and other negotiable instruments, to the extent that the obligations arise out of their negotiable character; out of the law of companies and other bodies, corporate or unincorporated; out of the relations between the settlors, trustees and beneficiaries of a voluntarily created trust; out of nuclear damage; and out of violations of privacy and rights relating to personality, including defamation. A claim over a defamatory article is therefore outside Rome II, even though it is a non-contractual claim.
Rome II does not apply to evidence and procedure, except for Articles 21 and 22 (Article 1(3)). For the purposes of the Regulation, 'Member State' means every Member State other than Denmark (Article 1(4)); recital 40 explains that Denmark does not take part and is not bound.
Two further rules set the reach of the Regulation. 'Damage' covers any consequence arising out of tort/delict, unjust enrichment, negotiorum gestio (acting for another without authority) or culpa in contrahendo (fault in pre-contract dealings), and the Regulation applies also to obligations that are likely to arise (Article 2). And the law it designates is applied whether or not it is the law of a Member State (Article 3): if Rome II points to the law of a non-EU country, a court in a Member State applies that law.
The general rule: the law of the country where the damage occurs (Article 4(1))
The central rule of Rome II is in Article 4(1): unless the Regulation provides otherwise, the law applicable to a non-contractual obligation arising out of a tort/delict is the law of the country in which the damage occurs. It does not matter in which country the event giving rise to the damage occurred, or in which country or countries the indirect consequences of that event occur.
Recital 17 makes this concrete for two cases. In cases of personal injury, the country in which the damage occurs is the country where the injury was sustained; in cases of damage to property, it is the country where the property was damaged. The Belgian tourist injured in Valencia therefore starts from Spanish law, even though the treatment continues in Belgium and the loss of earnings is felt there: those are indirect consequences.
Recital 18 describes the structure of Article 4: paragraph 1 is the general rule (lex loci damni), paragraph 2 is an exception for parties who live in the same country, and paragraph 3 is an 'escape clause' for cases manifestly more closely connected with another country.
When both parties live in the same country, or the case points elsewhere (Article 4(2) and (3))
Article 4(2): where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country applies. In the first example in this guide, the injured tourist and the guest who jumped in both live in Belgium, so Belgian law governs her claim against him, although the injury happened in Spain.
Habitual residence has its own definitions in Article 23. For companies and other bodies it is the place of central administration; where the event or the damage arises in the course of operating a branch, agency or other establishment, the place of that establishment is treated as the habitual residence. For a natural person acting in the course of business activity, it is the principal place of business. A hotel operated through a local branch is therefore treated as resident where the branch is, for an accident arising from that branch's operation.
Article 4(3) is the escape clause. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than the one indicated by paragraphs 1 or 2, the law of that other country applies. A manifestly closer connection might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict. The word 'manifestly' sets a high bar: the escape clause is an exception, not a second general rule.
Other special rules in Chapter II cover particular kinds of damage. For product liability, Article 5, without prejudice to Article 4(2), points, in order, to the law of the injured person's habitual residence, then the country where the product was acquired, then the country where the damage occurred, each time only if the product was marketed in that country, and to the law of the liable person's habitual residence if that person could not reasonably foresee the marketing of the product, or of a product of the same type, there; Article 5(2) contains the same escape clause for a manifestly closer connection as Article 4(3). For environmental damage, Article 7 lets the person seeking compensation choose the law of the country where the event giving rise to the damage occurred instead of the general rule. Articles 6, 8 and 9 contain separate rules for unfair competition, intellectual property and industrial action.
Choosing the applicable law by agreement (Article 14)
The parties may agree to submit a non-contractual obligation to the law of their choice (Article 14(1)), but only in two ways: (a) by an agreement entered into after the event giving rise to the damage occurred; or (b) where all the parties are pursuing a commercial activity, also by an agreement freely negotiated before the event. A private individual cannot therefore be bound in advance by a clause in standard terms choosing the law that will govern a future accident claim.
The choice must be expressed or demonstrated with reasonable certainty by the circumstances of the case, and it does not prejudice the rights of third parties (Article 14(1)). Where all the elements relevant to the situation at the time when the event giving rise to the damage occurs are located in a country other than the one whose law has been chosen, the choice does not prejudice the provisions of that other country's law which cannot be derogated from by agreement (Article 14(2)); where all such elements are located in one or more Member States, a choice of the law of a non-Member State does not prejudice provisions of Community law, where appropriate as implemented in the Member State of the forum, which cannot be derogated from by agreement (Article 14(3)). No choice is permitted at all for claims under Article 6 (unfair competition and restrictions of competition) or for infringements of intellectual property rights (Articles 6(4) and 8(3)).
A post-accident agreement on the applicable law can simplify negotiations with an insurer, but it should be recorded clearly and its consequences for limitation periods and heads of damage checked before signing.
What the applicable law decides (Articles 15, 17, 18 and 22)
Once Rome II has identified the law, Article 15 lists what that law governs in particular: (a) the basis and extent of liability, including who may be held liable for their acts; (b) grounds for exemption from liability, any limitation of liability and any division of liability; (c) the existence, nature and assessment of damage or the remedy claimed; (d) within the limits of the court's procedural powers, measures to prevent or terminate injury or damage or to ensure compensation; (e) whether a right to claim damages may be transferred, including by inheritance; (f) persons entitled to compensation for damage sustained personally; (g) liability for the acts of another person; and (h) the manner in which an obligation may be extinguished and the rules of prescription and limitation, including their commencement, interruption and suspension.
Point (h) deserves attention: the time limit for bringing the claim is the time limit of the applicable law, not of the country where the victim lives or sues. A claimant who relies on a familiar home-country limitation period may find that a shorter foreign period has already run.
Two rules keep the local context in view. Under Article 17, in assessing the conduct of the person claimed to be liable, account is taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct in force at the place and time of the event: the safety rules in force at the Spanish hotel pool remain relevant to the Belgian guest's conduct, even if Belgian law governs liability. And under Article 22(1), the applicable law's presumptions of law and rules on the burden of proof apply.
Article 18 allows the injured person to bring the claim directly against the insurer of the person liable if either the law applicable to the non-contractual obligation or the law applicable to the insurance contract provides for such a direct action. For a road-accident victim, this is the provision that can allow dealing directly with the other driver's insurer rather than with the driver.
For road accidents specifically, recital 33 adds that, according to the current national rules on compensation awarded to victims of road traffic accidents, when quantifying damages for personal injury in cases where the accident takes place in a State other than that of the victim's habitual residence, the court seised should take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention.
| Situation | Applicable law | Article |
|---|---|---|
| General rule for torts | Law of the country where the damage occurs (for personal injury, where the injury was sustained) | 4(1); recital 17 |
| Both parties habitually resident in the same country | Law of that country | 4(2) |
| Manifestly closer connection, for example a related contract | Law of that other country | 4(3) |
| Product liability | Injured person's residence, then place of acquisition, then place of damage, each if the product was marketed there | 5 |
| Environmental damage | General rule, or the law of the event's country if the claimant chooses | 7 |
| Agreement on the law | Only after the event, or before it if all parties pursue a commercial activity | 14 |
| Direct claim against insurer | Allowed if the law of the tort or of the insurance contract provides for it | 18 |
| Traffic accidents in States party to the 1971 Hague Convention | The Convention may apply instead | 28(1); 30(1)(ii) |
| Defamation and privacy | Outside Rome II | 1(2)(g) |
Limits on the applicable law and other instruments (Articles 16, 24, 26, 27 and 28)
Rome II applies the designated country's substantive law only: renvoi is excluded, meaning that the rules of private international law of that country are not applied (Article 24). The court may still apply the overriding mandatory provisions of its own law (Article 16), and may refuse a provision of the designated law only if its application is manifestly incompatible with the public policy of the forum (Article 26).
Rome II does not prejudice the application of provisions of other EU instruments which, in relation to particular matters, lay down conflict-of-law rules for non-contractual obligations (Article 27). And under Article 28(1), Rome II does not prejudice the application of international conventions to which one or more Member States were parties when the Regulation was adopted and which lay down conflict-of-law rules for non-contractual obligations; however, as between Member States, the Regulation takes precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by the Regulation (Article 28(2)).
Article 28 matters for road accidents in particular. Article 30(1)(ii) required the Commission's review report to include a study on the effects of Article 28 with respect to the Hague Convention of 4 May 1971 on the law applicable to traffic accidents. Where a Member State was already party to that Convention when Rome II was adopted, its courts may apply the Convention's rules rather than Article 4 of Rome II to a traffic accident claim. Before relying on Article 4 in a road accident case, a claimant should therefore check whether the court that will hear the claim is in a State party to the 1971 Hague Convention.
When Rome II applies in time (Articles 31 and 32)
The Regulation applies to events giving rise to damage which occur after its entry into force (Article 31) and has applied from 11 January 2009 (Article 32), except for Article 29 on the notification of conventions, which applied from 11 July 2008.
Rome II does not set any amount of compensation, any fixed tariff for injuries or any time frame for a claim. Those matters belong to the national law it designates and, for procedure, to the law of the court hearing the case.
Practical steps after an injury in another EU country
1. Record where the injury was sustained and where each party habitually resides. These two facts decide the starting point under Article 4(1) and (2).
2. Identify any contract between the parties (hotel booking, rental agreement, package holiday, employment). A closely connected contract can point to a manifestly closer connection under Article 4(3).
3. Check the limitation period under the applicable law, not under the law of your home country (Article 15(h)).
4. Ask whether a direct claim against the insurer is available under the law of the tort or of the insurance contract (Article 18).
5. For a road accident, check the Hague Convention question first (Article 28), because it can change the applicable law.
6. Do not sign an agreement on the applicable law without advice: it is valid after the event (Article 14(1)(a)) and can change limitation periods and heads of damage. For a wider view of tourist injury claims, see our guide Injured abroad as a tourist.
Frequently asked questions
Which country's law applies if I am injured on holiday in another EU country?
As a general rule, the law of the country where the injury was sustained (Article 4(1) and recital 17). If you and the person liable both have your habitual residence in the same country, that country's law applies instead (Article 4(2)). If the case is manifestly more closely connected with another country, for example through a closely connected contract, the law of that country applies (Article 4(3)).
Does Rome II decide which court I can sue in?
No. Rome II only decides which law applies to the claim. Which court has jurisdiction is a separate question decided by other rules, and the court that hears the case applies Rome II to choose the law.
Whose limitation period applies?
The limitation and prescription rules of the law that Rome II designates, including when the period starts and how it is interrupted or suspended (Article 15(h)).
Can I claim directly from the other driver's insurer?
Yes, if the law applicable to the non-contractual obligation or the law applicable to the insurance contract provides for a direct action (Article 18).
Does Rome II apply to defamation or privacy claims?
No. Non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation, are excluded (Article 1(2)(g)).
Does Rome II apply in Denmark?
No. For the purposes of the Regulation, 'Member State' means any Member State other than Denmark (Article 1(4); recital 40).
Can the law of a non-EU country apply under Rome II?
Yes. The law designated by the Regulation is applied whether or not it is the law of a Member State (Article 3), subject to overriding mandatory rules of the forum and to public policy (Articles 16 and 26).